| People v Parker |
| 2009 NY Slip Op 04967 [63 AD3d 537] |
| June 18, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Wayne Parker, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki Scherer, J., on motion; John Cataldo,J., at jury trial and sentence), rendered May 10, 2007, convicting defendant of robbery in thethird degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, affirmed.
The court properly denied defendant's CPL 190.50 motion to dismiss the indictment, madeon the ground that defendant was deprived of his right to testify before the grand jury. ThePeople afforded defendant a reasonable opportunity to testify and any failure was due to defensecounsel's lack of cooperation in effectuating that opportunity, by refusing to confirm with theprosecutor that defendant actually would testify, not checking her cell phone messages aftergiving the prosecutor that number as her contact number, and not even attempting to speak todefendant about whether or not he would testify until it was too late (see People vWatkins, 40 AD3d 290 [2007], lv denied 9 NY3d 870 [2007]; People vJackson, 298 AD2d 144 [2002], lv denied 99 NY2d 582 [2003]). The recordestablishes that defense counsel wished to interview her client, and that there was no need for thePeople to bring defendant from the court pens to the grand jury room until that interview tookplace.
Defendant did not preserve his Confrontation Clause claim. A police witness testified that heshowed defendant's wife a gold medallion taken during the robbery, and that she did notrecognize it as belonging to her husband. Although defendant made general objections, and therewere unrecorded discussions whose contents are unknown, the first point in the trial at whichdefendant made a specific claim was in a mistrial motion made after summations. We find thisbelated motion insufficient to preserve the issue (see People v Narayan, 54 NY2d 106,114 [1981]; People v Kello, 267 AD2d 123 [1999], affd 96 NY2d 740 [2001];cf. People v Ortiz, 54 NY2d 288, 292 n 3 [1981]), and we decline to review it inthe interest of justice. As an alternative holding, we find that the testimony was admissible notfor its truth, but for the legitimate nonhearsay purpose of explaining the officer's actions incontinuing to detain defendant, rather than the complainant, after defendant told the officer thathe was the actual victim, and that the medallion was his (see People v Tosca, 98 NY2d660 [2002]). This was [*2]particularly significant, because one ofthe issues the defense raised at trial was the adequacy of the police investigation. Further,regardless of the admissibility of this evidence, the drastic remedy of a mistrial, the only remedyrequested, would have been inappropriate. Any error regarding either the admission of, or theprosecutor's summation comments on, this evidence was harmless (see People vCrimmins, 36 NY2d 230 [1975]). Concur—Saxe, J.P., Friedman, Moskowitz andRichter, JJ.
Freedman, J., dissents in a memorandum as follows: I would reverse the conviction based onthe trial court's admission of clearly testimonial hearsay evidence and permission for the Peopleto sum up on that evidence despite repeated objections by defense counsel.
Defendant was convicted of one count of robbery in the third degree (Penal Law §160.05) pursuant to the following scenario. The complaining witness, a 22 year old who hadbeen released from prison about a year before, averred that he was walking with a friend afterleaving his job at a bodega at 1:00 a.m. Shortly after he and the friend parted, defendant attackedhim and grabbed a white gold chain with a Jesus medallion from around his neck that thecomplainant claimed to have purchased for $850 during the past year pursuant to a layaway plan.He yelled that someone had robbed him, and acquaintances who were still on the streetimmediately appeared and chased defendant, wrestled him to the ground and caused him tobleed. Defendant then got away and ran into a nearby bodega, bleeding and claiming that he hadbeen robbed, and pleaded with the owner to call the police. Defendant then grabbed a knife andran to an ambulance parked nearby, even though he lived in the neighborhood.
The complainant flagged down a police car, telling the officers that he had been robbed ofhis Jesus medallion and part of his chain, and that the robber had run to a nearby ambulance. Oneof the police officers, Lenno Hendricks, entered the ambulance, saw the injured defendant and aknife on the floor, and arrested, handcuffed and searched him. Defendant told Hendricks that itwas he who had been robbed, but the officer recovered the Jesus medallion and broken chainfrom defendant's pocket. Both complainant and defendant were taken to St. Luke's Hospital fortreatment of injuries, each claiming that the medallion was his and that he had been attacked androbbed by the other.
Police Officer Hendricks testified at trial that when defendant's wife arrived in his hospitalroom, defendant asked his wife to bring receipts and then "kept telling his wife to take thependant" from the police, but she "didn't know what he was talking about." Over repeatedobjections, he testified that defendant's wife "became irate with him," and that when the officershowed her the medallion and asked if she recognized it as belonging to her husband, she said"no." The trial court admitted the officer's testimony concerning defendant's wife's statement onthe ground that it was admissible for the nonhearsay purpose of explaining why the officer,having already arrested defendant, continued to detain him. Although the record does not reflectthe reason for defense counsel's objection, it is obvious that the testimony constituted hearsay. Inhis summation, the prosecutor then made much of defendant's wife's failure to recognize themedallion. Again, [*3]defense counsel objected repeatedly andapproached the bench, but the objections were overruled. The following day, counsel moved fora mistrial on the ground that the testimony was admitted in violation of the Confrontation Clause(see Davis v Washington, 547 US 813 [2006]; Crawford v Washington, 541 US36 [2004]).
The majority finds that defendant did not preserve his Confrontation Clause claim becausehe only made general objections, and what was said at the bench was unrecorded. The first pointat which an objection based on the Confrontation Clause was recorded was after summations.Although Confrontation Clause claims must be preserved separately from common-law hearsayobjections (People v Kello, 96 NY2d 740, 743 [2001]), the repeated objections, followedby a bench conference immediately after the offer of what was clearly hearsay, suffice topreserve the objection. Even were there some basis for admitting the hearsay during the trial,ostensibly to complete a narrative, there was absolutely no basis for allowing the prosecution tocontinue using it during summation for the clear purpose of substantiating the contention that themedallion did not belong to defendant; ownership of the medallion was the key issue at the trial.While there was other evidence that the complainant possessed a pendant ormedallion—specifically, what the defense calls a not very clear photograph allegedlytaken at an unspecified time before the incident, showing him wearing a medallion orpendant—he produced no documentary evidence of this $850 item supposedly purchasedon a layaway plan within the year prior to this incident. The photograph was not made a part ofthe record.
The majority also avers that any error in admitting and allowing repetition of the hearsayconstituted harmless error, but this Court has held otherwise when a key issue was involved andthe prosecutor emphasized the testimony during summation (see People v Woods, 9AD3d 293 [2004]). For an error involving the Confrontation Clauses of the Sixth Amendment tothe United States Constitution and article I, § 6 of the New York Constitution to beharmless, it must be shown that it was harmless beyond a reasonable doubt (People vGoldstein, 6 NY3d 119, 129 [2005], cert denied 547 US 1159 [2006], citingChapman v California, 386 US 18, 24 [1967]). Even where, as here, there was significantevidence of defendant's guilt without the testimonial hearsay, the evidence was not sooverwhelming as to support a finding that its admission was harmless because it involved themain issue in the case, namely, who owned the medallion (id.).